Studebaker-Worthington Leasing Corp. v. Mitchell Titus & Co.

Apr 28, 1997
Versions:238 A.D.2d 576
657 N.Y.S.2d 965
1997 N.Y. App. Div. LEXIS 4398

—In an action to recover damages for breach of a contract to lease equipment, the defendants appeal (1) from an order of the Supreme Court, Nassau County (Kutner, J.), dated September 25, 1995, which granted, without opposition, the plaintiff’s motion for summary judgment, and (2) as limited by their brief, from so much of an order of the same court, dated March 29, *5771996, as denied their motion to vacate the order dated September 25, 1995.

Ordered that the appeal from the order dated September 25, 1995, is dismissed, as no appeal lies from an order made upon the default of the appealing party (see, CPLR 5511); and it is further,

Ordered that the order dated March 29, 1996, is affirmed insofar as appealed from; and it is further,

Ordered that the respondent is awarded one bill of costs.

The defendants failed to establish a reasonable excuse for their failure to respond to the motion for summary judgment or a meritorious defense to this action (see, Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831; Martinez v Otis El. Co., 213 AD2d 523). The defendants’ motion to vacate the order entered upon their default was supported only by the affirmation of their attorney, who had no personal knowledge of the facts constituting the alleged meritorious defense. Such an affirmation has no substantive probative value as to a showing of a meritorious defense, and the motion to vacate the order entered upon the defendants’ default was therefore properly denied (see, Cooper Motor Leasing v Data Discount Ctr., 125 AD2d 454). Miller, J. P., Thompson, Joy and Luciano, JJ., concur.